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Providing Targeted Cancer Diagnostics

Terms and Conditions

 

AGREEMENT FOR THE SUPPLY OF TESTING SERVICES (Terms and conditions for laboratories without formal SLA)

                BACKGROUND:

UCL by its division known as UCL Advanced Diagnostics provides services relating to carrying out of certain tests and the provision of the results of such tests.

Customer wishes to obtain and UCL wishes to supply such results and accompanying information on the terms and conditions set out in this agreement.

1.            OPERATIVE TERMS

1.1.         The definitions and rules of interpretation in this clause apply to this agreement.

Agreement” means the contract formed by the Parties’ acceptance of this agreement on the terms and conditions herein.

Commencement Date” means date of test request;

Confidential Information” means any and all information, including Results, and information relating to the business or affairs of the Party, provided directly or indirectly by one Party to the other Party in oral or documentary form or by way of models, biological or chemical materials or other tangible form or by demonstrations, whether before, on or after the date of this Agreement and which in each case at the time of provision is marked or otherwise designated to show expressly or by necessary implication that it is imparted in confidence; and any copy of the foregoing. For the avoidance of doubt, any and all information relating to the costing or pricing policy of the Services, or any internal budget breakdown of UCL generally, shall be Confidential Information;

Delivery” means completion of delivery of an Order to the Customer;

Force Majeure Event” has the meaning given in clause 13;

Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and “Intellectual Property Right” means any one of the Intellectual Property Rights;

Order” means an order for Tests submitted by Customer from time to time in accordance with clause 5;

Parties” means UCL and Customer and “Party” shall mean either of them;

Results” means all information, and other matter capable of being the subject of Intellectual Property Rights which is conceived and first reduced to practice or writing or developed in whole or in substantial part for the purpose of the Services;

Services” means the tests described in Schedule 1 attached hereto;

Term” means the term of the agreement, as determined in accordance with clause 2;

Tests” means the tests ordered by and supplied to Customer;

VAT” means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

 

1.2.         A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.

1.3.         The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules.

1.4.         A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5.         Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.

1.6.         A reference to writing or written includes faxes but not e-mail.

1.7.         Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.8.         Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2.            COMMENCEMENT AND TERM

This Agreement shall commence on the Commencement Date and shall, subject to the provisions of clause 8, remain in effect for two years. After such time, this Agreement shall renew automatically for a period of one year. This agreement shall be superceeded by customer specific agreements.

3.            PROVISION OF SERVICES

3.1.         From time to time during the Term, Customer may place an Order for Services with UCL. If UCL accepts the Order, UCL shall supply and Customer shall purchase such quantities of Tests as specified by the Customer in its Order.

3.2.         UCL shall perform the Services in accordance with GLP and all generally accepted industry standards and practices that are applicable.

3.3.         UCL shall provide the Results to the Customer.

3.4.         UCL shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to perform the Services.

3.5.         Customer shall have the right to enter UCL’s premises to inspect the testing facilities and the equipment used by UCL in carrying out the Tests.

3.6.         Inspections carried out pursuant to clause 3.5 shall be carried out during business hours on reasonable notice to UCL.

4.            PRICE AND PAYMENT

4.1.         In consideration of the Services to be provided by UCL to Customer, Customer shall pay to UCL the sums incurred according to the pricing schedule contained in Schedule 1 and the payment provisions set out in this Agreement.

4.2.         UCL may, at its sole discretion, adjust the prices in Schedule 2. UCL shall give the Customer no less than 30 days’ prior notice in writing of any changes to its pricing.

4.3.         All sums due under this Agreement:

4.3.1.     are exclusive of Value Added Tax which shall be paid by Customer to UCL as applicable and at the current rate in addition to any amount or rate quoted;

4.3.2.     shall be paid on the due date(s) by Customer to UCL and no more than 30 days after receipt of UCL’s invoice;

4.3.3.     nothwithstanding any other provision in this Agreement, shall become due immediately upon termination. This clause 4.3.3 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

4.4.         UCL shall be entitled to invoice Customer for Services rendered monthly in arrears.

4.5.         Without prejudice to any other right or remedy available to UCL, if Customer fails to pay UCL on the due date for payment, UCL reserves the right to charge interest in accordance with the Late Payments of Commercial Debts (Interest) Act 1998.

4.6.         Without prejudice to any other right or remedy available to UCL, if Customer fails to pay UCL on the due date for payment, UCL shall have the right to suspend the provision of Services until payment has been received.

5.            ORDERS

5.1.         Each Order shall be deemed to be a separate offer by Customer to purchase Tests on the terms of this Agreement, which UCL shall be free to accept or decline.

5.2.         No Order shall be deemed to be accepted unless expressly stated as accepted by UCL.

5.3.         Each Order shall:

5.3.1.     be given in writing or, if given orally shall be confirmed in writing; and,

5.3.2.     specify the type and quantity of Tests ordered;

5.4.         UCL shall assign a number to each Order it accepts (“Order Numbers”) and notify such Order Numbers to Customer with Delivery.

5.5.         Prior to accepting an Order, UCL shall specify to the Customer what information it requires. UCL reserves the right to reject any Orders that do not contain the required information. UCL accepts no liability for any delays that arise as a result of the Customer’s failure to provide the required information. 

6.            DELIVERY

6.1.         Customer shall arrange for all accepted Orders to be delivered to UCL and the Parties shall mutually agree the method for Delivery to Customer.

6.2.         Delays in the Delivery of an Order shall not entitle Customer to:

 

6.2.1.     Refuse to take Delivery of an Order; or

6.2.2.     Terminate this agreement, subject always to clause 8.2.

UCL shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by Customer’s failure to comply with its obligations under this Agreement.

7.            TITLE AND RISK

7.1.         Risk in Tests shall pass to Customer on Delivery.

7.2.         Title to Tests shall not pass to Customer until UCL has received payment in full for such Tests.

8.            TERMINATION

8.1.         Either Party may terminate the Agreement by giving the other Party no less than 30 days’ written notice.

8.2.         A Party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other Party if:

8.2.1.     the other Party fails to pay any undisputed amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or

8.2.2.     the other Party commits a material breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or

8.2.3.     the other Party commits a series of persistent minor breaches which when taken together amount to a material breach; or

8.2.4.     the other Party makes arrangements with its creditors or goes into liquidation (voluntarily or otherwise) other than for the purpose of a bona fide reconstruction or a receiver, administrative receiver or administrator is appointed in respect of the whole or any part of its business or assets or if any similar or analogous event occurs; or

8.2.5.     any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.4; or

8.2.6.     the other Party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

8.2.7.     any Force Majeure Event prevents the other party from performing its obligations under this agreement for any continuous period of three months.

8.3.         Termination of this Agreement shall not prejudice any of the Parties’ right and remedies which have accrued as at termination.

8.4.         On termination of this Agreement each Party shall promptly:

8.4.1.     return to the other Party all equipment, materials and property belonging to the other Party that the other Party had supplied to it in connection with the Services;

8.4.2.     return to the other Party all documents and materials (and any copies) containing the other Party’s Confidential Information;

8.4.3.     erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and

8.4.4.     on request, certify in writing to the other party that it has complied with the requirements of this clause.

8.5.         On termination of this Agreement Customer, within 30 days receipt of a UCL invoice, shall pay to UCL:

8.5.1.     any payment which was due to UCL prior to the date of termination but which was not paid prior to termination; and

8.5.2.     proportion of the next payment (if any) falling due after the date of termination reflecting UCL’s actual expenditure on the Services  prior to the date of termination and any non-cancellable commitments entered into by UCL on behalf of the Services.

8.6.         On termination of this Agreement clauses 4, 8, 9, 11, 12, 16, 20, and 21 shall survive and continue in full force and effect.

9.            CONFIDENTIAL INFORMATION

9.1.         Each Party shall keep confidential and secret any and all Confidential Information that is acquired in connection with the Services.

9.2.         Neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.  Each Party shall be responsible for ensuring that its officers and employees comply with the provisions of this clause.  If a Party intends to use the services of subcontractors or third parties to work on, advise or manage any aspect of the Services, that Party shall first ensure such subcontractors or other third parties sign legally-binding agreements requiring them to abide by conditions of confidentiality no less onerous than those set out in this Agreement.

9.3.         In the event of one Party visiting any premises of the other Party, the visiting Party undertakes that any information which may come to its knowledge as a result of any such visit, inclusive of the form, materials and design of the various elements of any relevant plant and equipment which may be seen at such establishments as well as all the plant as a whole, the methods of operation thereof and the various applications thereof, shall be kept strictly confidential and shall be regarded as Confidential Information for the purpose of this Agreement.

9.4.         The obligations in clauses 9.1, 9.2, and 9.3 shall not apply to Confidential Information, disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), where the Receiving Party can clearly demonstrate that the information:

9.4.1.     was in the public domain prior to its disclosure or enters into the public domain after disclosure otherwise than by default of the Receiving Party;

9.4.2.     becomes known to the Receiving Party by action of a third party not in breach of any obligation of confidentiality to the Disclosing Party;

9.4.3.     was in the Receiving Party’s possession before receipt from the Disclosing Party and was not acquired directly or indirectly from the Disclosing Party;

9.4.4.     was independently developed by or for the Receiving Party at any time, independently of the Confidential Information disclosed to it by the Disclosing Party;

9.4.5.     is required to be disclosed by law or government regulation or court order (including without limitation to enable UCLC to comply with to comply with its obligations under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004).  In such cases, the Receiving Party shall wherever practicable give reasonable advance notice of the intended disclosure to the other Party and shall limit the disclosure to the extent legally required.

9.5.         The provisions of this clause 9 shall survive termination of this Agreement for a period of five years from termination.

10.          DATA PROTECTION

10.1.      UCL shall (and shall procure that any of its staff involved in the provision of the Agreement) comply with any notification requirements under the Data Protection Legislation and both parties will duly observe all their obligations under the Data Protection Legislation, which arise in connection with the Agreement.

10.2.      Notwithstanding the general obligation in clause 10.1, where UCL is processing Personal Data as a Data Processor for Customer, UCL shall:

10.2.1.   process relevant Personal Data  only to the extent necessary to perform its obligations under this Agreement;

10.2.2.   keep an appropriate record of all processing of such Personal Data carried out on behalf of the Customer;

10.2.3.   ensure access to the Personal Data to those of its staff or other personnel who have a legitimate need to access the Personal Data for the purpose of this Agreement;

10.2.4.   not cause or allow the transfer of Personal Data outside the European Economic Area without the prior written consent of the Customer.

10.3.      To the extent that the Parties agree that they are joint data controllers in respect of any Personal Data processed under this Agreement, they will jointly agree the provisions of an Information Sharing Protocol to regulate their joint responsibilities, which will take precedence to the provisions in this clause 10.

11.          INTELLECTUAL PROPERTY

As between Customer and UCL, all Intellectual Property Rights and all other rights in the Results shall be owned by UCL and UCL hereby licences all such rights to Customer free of charge and on an irrevocable, non-exclusive, worldwide basis to such extent as is necessary to enable Customer to make reasonable use of the Results.

12.          LIABILITY

12.1.      This clause sets out the entire financial liability of the Parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:

12.1.1.   any breach of this agreement however arising;

12.1.2.   any use made or resale of the Results by Customer, or any product incorporating any of the Results; and

12.1.3.   any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

12.2.      All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

12.3.      Nothing in this Agreement limits or excludes the liability of the other Party for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation.

12.4.      Subject to clause 12.3, UCL shall not under any circumstances whatever be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses; loss of anticipated savings; loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

12.5.      Subject to clause 12.3, UCL’s UCL’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the total sums paid by Customer to UCL for the Services in any one year.

12.6.      If UCL’s performance of its obligations under this agreement is prevented or delayed by any act or omission of Customer, its agents, subcontractors, consultants or employees, UCL shall not be liable for any costs, charges or losses sustained or incurred by Customer that arise directly or indirectly from such prevention or delay.

12.7.      Customer shall be liable to pay to UCL, on demand, all reasonable costs, charges or losses sustained or incurred by UCL (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to UCL confirming such costs, charges and losses to Customer in writing.

12.8.      Customer shall indemnify UCL from and against any claims or suits made or threatened by a third party against UCL arising from this Agreement, the provision of the Services or the use of the Results or any other products or services offered or provided by Customer arising from the provision of the Services, save to the extent the claim or suit arises solely as a result of the negligence or default of UCL.

13.          FORCE MAJEURE

13.1.      UCL (or any person acting on its behalf) shall not have any liability or responsibility for failure to fulfill any obligation under this agreement so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

13.2.      For purposes of this clause 13, a “Force Majeure Event” means an event beyond the control of a Party (or any person acting on its behalf), which by its nature could not have been foreseen by such Party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.

14.          ANTI-BRIBERY

The Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements) and shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK. The Parties will comply with UCL’s Anti-Corruption and Bribery Policy in force from time to time. The Parties will promptly report to each other any request or demand for any undue financial or other advantage of any kind received by them in connection with the performance of this Agreement. The Parties shall ensure that any person associated with them who is involved in this Agreement acts in accordance with the terms of this clause 14 of this Agreement. Breach of this clause 14 of this Agreement shall be deemed a material breach of the Agreement justifying immediate termination of this Agreement.

15.          NON-ASSIGNMENT

The Customer may not assign, delegate, sub-contract or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of UCL.  UCL may not assign or delegate or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of Customer save as provided for by this Agreement.  UCL may subcontract its obligations under this Agreement without the prior written agreement of Customer.

16.          VALIDITY

If any provision of this Agreement is held by any competent authority to be illegal, void, voidable, invalid, unenforceable or unreasonable in whole or in part it shall, to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable and the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.

17.          THIRD PARTIES

This Agreement does not in any way whatsoever entitle a person who is not a party to this Agreement (including, without any limitation, any employee, officer, agent, representative) to enforce or amend any term or condition of this Agreement, which expressly, or by implication, confers a benefit on him/her pursuant to the Contracts (Rights of Third Parties) Act 1999, without the prior written agreement of both Parties.

18.          INDEPENDENT CONTRACTOR

This Agreement is not intended to establish, and shall not be construed by either the Customer or UCL as establishing any form of business partnership between themselves.  Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has the authority to make commitments on the other’s behalf.

19.          NOTICES

Any notices required to be given under this Agreement must be in writing and delivered to the address of the contracting Party specified in this Agreement or to such other addresses as the Parties may specify in writing.

20.          VARIATION AND WAIVER

Any variation of this Agreement must be in writing and signed by or on behalf of the Parties. No failure to exercise or delay in exercising any right or remedy provided under this agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under this agreement shall prevent or restrict the further exercise of that or any other right or remedy.

21.          DISPUTE RESOLUTION AND JURISDICTION

This Agreement and any dispute or claim arising out of or in connection with it or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to accept any dispute or claim that arises out of or in connection with its subject matter or formation (including non-contractual disputes or claims).